'Irrevocable Loss Would Be Caused To Environment & Elephant Population': Uttarakhand High Court Stays Order De-Notifying Shivalik Elephant Reserve

Recording this prima facie finding, a Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Manoj Kumar Tiwari stayed the operation of a Govt order de-notifying the Shivalik Elephant Reserve Area.

The Bench also observed that the Govt order was passed per-se in violation of Section 2 of the Forest (Conservation) Act, 1980, which binds the State to seek permission from the Central Government before de-reserving any Reserved Area.

The order stated,

"Since there is no evidence to show that the Central Government has given its consent for diverting the reserve area, prima facie, the notification dated 08.01.2021 is per-se in violation of Section 2 of the Forest (Conservation) Act, 1980. Thus, the petitioner has a strong prima facie case in her favour.

if, the notification were permitted to operate and, in case, the proposed area is diverted for the purpose of expansion of the Airport, an irrevocable loss would be caused, both to environment, and to the elephant population."

Background

On November 24, 2020, the Uttarakhand State Wildlife Board in a meeting chaired by CM Trivendra Singh Rawat recommended de-notification of the Shivalik Reserve for expansion of the Jolly Grant Airport. In January this year, the High Court took suo motu cognizance of the matter.

Thereafter, vide order dated January 8, 2021, the Court stayed the abovesaid recommendation for four weeks (until the next date of hearing.)

However, on the same day, the Government notified the de-reservation of the Shivalik Elephant Reserve.

The Petitioner had thus sought stay of the Govt order, on the following grounds:

• According to Section 2 of the Forest Conservation Act, 1980, no State Government is permitted to de-reserve any reserve area, without seeking the permission of the Central Government. However, in the present case, no such permission has been sought, and no such permission has been granted by the Central Government.
• A proposal seeking approval of the Ministry of Environment, Forest and Climate Change was sent by the State Government. However, the Central Ministry had raised certain concerns and had sought for certain clarifications before it takes a decision on the said proposal. Thus, till now, mandate of Section 2 is not fulfilled.
• If notification dated 08.01.2021 is not stayed promptly, it may cause irreparable loss to the ecology, environment, and to the lives of the wild elephants, who continue to enjoy the protection and conservation of the Shivalik Elephant Reserve.

In its order, the Court noted that the balance of convenience lies in favour of the Petitioner. It observed,

"The petitioner has also raised an arguable case, where the issues involved would be with regard to the legality of the recommendation dated 24.12.2020, and the notification dated 08.01.2021. Another issue would deal with the preservation and conservation of wild life as warranted by Article 48-A of the Constitution of India. Moreover, the issue would be how to ensure a sustainable development of the State, while keeping in mind the required development of the State on one hand, and the preservation and conservation of fragile ecological areas of the State for the protection of our wildlife."

The Court also took note of the concerns raised by the Central Ministry with respect to the proposed diversion, which falls under 'High Conservation Value Area'. As per the Ministry, such a proposed diversion will cause further fragmentation and would reduce the area for the elephants.

The Court said, "the Central Ministry itself has suggested that other alternatives be explored for extension of the Jolly Grant Airport."

The stay order is operational until the next date of hearing, i.e. March 3, 2021.

Case Title: Reena Paul v. State of Uttarakhand & Ors.

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